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socrateaser, Lawyer

Category: Tax

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Experience: Retired (mostly)

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The change in this tax year is that I am divorced. I am to

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The change in this tax year is that I am divorced. I am to claim one of my children and my ex-husband is to claim the other. I am soley responsible for child care and when I try to claim all of this as a deduction on my taxes I am unable to because I cannot claim the other child as a dependent. How can I claim this deduction?

Even if you cannot claim your child as a dependent, he or she is treated as your qualifying person if:

The child was under age 13 or was not physically or mentally able to care for himself or herself, and

You were the child's custodial parent. The custodial parent is the parent with whom the child lived for the greater number of nights in 2010. If the child was with each parent for an equal number of nights, the custodial parent is the parent with the higher adjusted gross income. For details and an exception for a parent who works at night, see Pub. 501.

The noncustodial parent cannot treat the child as a qualifying person even if that parent is entitled to claim the child as a dependent under the special rules for a child of divorced or separated parents.

If you cannot qualify under the above-described rule, then your only option is to refuse to sign IRS Form 8332 and then take all of the exemptions and deductions for each child.

Thank you for your response. How do I claim as a qualifying child without claiming them as an independent? Would my ex-husband just not be able to claim my other child as a dependent or is that I can take the deduction without having to claim him as a dependent? How would I enter this on the tax return?

If you are the custodial parent, then only you, and not your ex-husband, can claim the dependent exemption and child care credit -- unless you execute the Form 8332, releasing your right to the exemption to your ex-husband.

If your divorce judgment requires that you sign the Form 8332, then you will have to do so, regarless of the downside, or your ex-husband can have the court hold you in contempt. But, otherwise, if you have the kids living with you, then you have the power.

Maybe you can negotiate something where you give him the exemption and he pays for some or all of the child care for that child. That way, you both get what you originally were after -- and some of it comes from Uncle Sam.

Excellent information, very quick reply. The experts really take the time to address your questions, it is well worth the fee, for the peace of mind they can provide you with. OrvilleHesperia, California

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